Complaint Procedure (With More “Fixes” to Come)
On June 29 – for the twenty-first straight year - - I will have the pleasure to share my expertise on handbooks at SHRM’s 2015 Annual Conference. Over the years, approximately 10,000 SHRM members have walked away with a new way of looking at their handbooks: “every word counts.”
Looking back on my Annual Conference programs, my greatest regret has been echoed in my speaker evaluations: too much material and too little time. In seventy-five minutes, attendees were given many “take aways” - - but I barely scratched the surface.
Thanks to SHRM’s Department of Public Affairs, I’m going to have a monthly opportunity to blog, to take my time and to answer your questions. In addition, on August 5, I’m going to Twitter at #NextChat to talk to you in real time about your handbooks.
This month’s blog is a tease as to what’s to come on a monthly basis. Today, I will cover one of my favorite examples of “every word counts” and will give you a new sentence to fix a wording problem in your current handbook.
Going back to 1995, it wasn’t always the case; but today, every HR professional reading this blog has an anti-harassment handbook policy, which includes a complaint procedure with multiple portals of designated complaint recipients. These typically include: immediate supervisor, Department Head and Human Resources. Having the policy and complaint procedure is not only the right thing to do, but is also based on an amicus brief I submitted to the United States Supreme Court on behalf of SHRM. According to the Supreme Court, the harassment policy and complaint procedure provide employers an affirmative defense to harassment by a supervisor that does not culminate in a tangible employment action if the employee does not utilize the complaint procedure. All of you know of this as the Faragher affirmative defense, named after a lifeguard on the beaches in Boca Raton, Florida, located less than ten miles from my office.
Now, imagine this hypothetical: Mary, a file clerk, is sexually harassed by her immediate supervisor, John. Mary complains to John that she doesn’t like it and she wants him to stop. When he doesn’t stop and Mary cannot take it anymore, Mary files a sexual harassment charge with the EEOC and ultimately sues her employer.
Mary’s employer is confident that it will prevail in the lawsuit because of the Faragher affirmative defense: Mary did not complain to her Department Head or Human Resources. And, the employer will argue, the “complaint” to her immediate supervisor doesn’t count because he was the harasser.
It turns out, however, that Mary and John are not merely hypothetical. In their real case, Mary prevailed. The judge refused to apply the Faragher affirmative defense because Mary took reasonable steps to stop the harassment. By focusing on “every word” of the employer’s complaint procedure, the judge held that the immediate supervisor was a specifically designated compliant recipient - - regardless of his role as the harasser and the fact that complaining to him did not give the employer an opportunity (as an entity)
In short, Mary won because “every word counts.”
The quick fix to this result is to add the following sentence to your complaint procedure:
“Advising the offender that his or her behavior is unwelcome and/or requesting that it be discontinued shall not constitute a complaint under this procedure even if the offender is one of the designated representatives identified above.”
Hopefully, I’ll get to meet some of you in Las Vegas at my Mega Session in June. For those who can’t make it, we’ll be pen pals.
Next month, I’ll continue to focus on the words in your harassment policy and complaint procedure with more tips that will prove “every word counts.”